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Palovich v. Gentry, 2:18-cv-00240-APG-PAL. (2019)

Court: District Court, D. Nevada Number: infdco20190228d15 Visitors: 17
Filed: Feb. 27, 2019
Latest Update: Feb. 27, 2019
Summary: ORDER ANDREW P. GORDON , District Judge . Petitioner Joseph Palovich moves to stay this case while he seeks Ninth Circuit authorization to file a successive petition. ECF No. 7. The respondents oppose this request. ECF No. 8. The court lacks jurisdiction over this matter, and therefore the petition is dismissed without prejudice. "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals
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ORDER

Petitioner Joseph Palovich moves to stay this case while he seeks Ninth Circuit authorization to file a successive petition. ECF No. 7. The respondents oppose this request. ECF No. 8. The court lacks jurisdiction over this matter, and therefore the petition is dismissed without prejudice.

"Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Palovich states that he is seeking Ninth Circuit authorization and asks me to stay this case pending such authorization. But this court lacks jurisdiction over a second or successive petition that has not first been authorized by the court of appeals under 28 U.S.C. § 2244(b). Burton v. Stewart, 549 U.S. 147 (2007). I have no authority to stay something over which I have no jurisdiction. Thus, I must dismiss the petition without prejudice.

IT IS THEREFORE ORDERED that petitioner's motion to stay (ECF No. 7) is DENIED.

IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as set forth in this order.

IT IS FURTHER ORDERED that a certificate of appealability is denied.

IT IS FURTHER ORDERED that respondents' motion for compliance (ECF No. 5) is DENIED as moot.

IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case.

Source:  Leagle

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